Jose S/o Poulose v. K.K. Santosh; K.R. Sureshkumar; National Insurance Co. Ltd.; United Indian Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 30[TH] DAY OF JUNE 2021 / 9TH ASHADHA, 1943** ## **MACA NO. 1920 OF 2008** **AGAINST THE AWARD IN OP(MV)NO. 1212/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,PERUMBAVOOR** ## **APPELLANT/PETITIONER:** **JOSE S/O.POULOSE, NALIAN HOUSE KALAMBATTUPURAM, NEELESWARAM PO.,, KALADY.** **BY ADV SRI.DINESH MATHEW J.MURICKEN** ## **RESPONDENTS/RESPONDENTS:** - **1 K.K.SANTHOSH S/O.KRISHNAN, KALLIKULANGARA HOUSE,, KAIPPAMANGALAM PO.,, THRISSUR DISTRICT** - **2 K.R.SURESHKUMAR, KALLADA HOUSE THRISSUR DISTRICT** - **3 NATIONAL INSURANCE CO.LTD. BRANCH OFFICE, IRINJALAKUDA.** - **4 UNITED INDIAN INSURANCE CO.LTD. BRANCH OFFICE, PERUMBAVOOR.** ## **BY ADV SMT.SARAH SALVY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _MACA No. 1920 of 2008_ _2_ ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 1920 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of June, 2021 ## **JUDGMENT** The appellant was the petitioner in OP (MV) No.1212 of 2003 on the file of the Motor Accidents Tribunal, Perumbavur. The respondents in the appeal were the respondents in the claim petition. 2. The concise facts in the claim petition, relevant for the determination of the appeal are: on 08.12.2002, while the appellant was travelling in an autorickshaw bearing registration KL07 Z/9037 through the Angamali-Kalady road, a Bus bearing registration No.KL 01/AA 101 (offending vehicle) driven by the 1[st ] respondent in a rash and negligent manner came from the opposite direction and hit the autorickshaw. The appellant sustained serious injuries. The appellant was a Salesman by profession and was getting a monthly income of Rs.6,000/-. The _3_ _MACA No. 1920 of 2008_ appellant sustained serious injuries including fractures and was treated as an in-patient at the Little Flower Hospital Angamaly for the period from 08.12.2002 to 14.06.2003 under four different spells, spanning a period of 103 days. The petitioner is incapacitated from doing his work and suffers from permanent disability. Hence, respondents 1 to 3 were jointly and severally liable to pay compensation to him, which he quantified at Rs.10,00,000/- 3. The respondents 1 and 3 did not contest the proceedings and were set ex-parte. 4. The 3[rd] respondent filed a written statement, _inter alia,_ contending that the accident occurred also due to the negligence of the appellant. The 4[th] respondent – insurer of the autorickshaw in which the appellant was travelling – also did not contest the proceedings. 5. The appellant examined the Doctor who _MACA No. 1920 of 2008_ _4_ issued the disability certificate as PW1 and got Exts.A1 to A14 were marked in evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by permitting the appellant to realise an amount of Rs.2,64,340/- with interest at the rate of 7.5% per annum from the date of petition till the date of realization and proportionate costs. The Tribunal found that there was contributory negligence on the part of the owner of the autorickshaw, in which the appellant was travelling. 7. Aggrieved by the impugned award, the petitioner/appellant is in appeal. 8. Heard the learned counsel for the appellant/petitioner and the learned counsel appearing for the 3[rd] respondent-insurance company. 9. The sole question that emerges for _MACA No. 1920 of 2008_ _5_ consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just? 10. A Constitution Bench of the Hon'ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi** [(2017) 16 SCC 680], has held that Section 168 of the Motor Vehicles Act, 1988, deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standards. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. ## **Contributory negligence** 11. Ext.A2 charge-sheet filed by the Kalady police in Crime No.673 of 2002 clearly substantiates that the accident occurred solely on account of the _6_ _MACA No. 1920 of 2008_ negligence on the part of the 1[st] respondent. Admittedly, the respondents did not adduce any contra evidence. 12. A Division Bench of this Court in **New India Assurance Co. Ltd. v. Pazhaniammal and Others** [2011(3) KLT 648] has held that as a general rule ,the production of charge-sheet is _prima facie_ proof of sufficient evidence of negligence for the purpose of a claim under Section 166 of the M V Act, 1988. The charge-sheet can be accepted as an evidence against the accused driver. If any of the parties want to disprove the investigation conducted by the police, then the burden is on such person to let in oral evidence and discredit the charge-sheet. Only then the the charge sheet will fall into a pale of insignificance. 13. Another Division Bench of this Court in **Kolavan v. Salim** [2018(1) KLT 489] has reiterated _MACA No. 1920 of 2008_ _7_ the ratio in **Pazhaniammal** (supra) and has also held that a scene mahazar prepared in a case cannot be relied without there direct and upon being corroborative evidence. 14. Undisputedly, none of the respondents mounted the box and let in any contra evidence to disprove the charge-sheet. Therefore, applying the ratio laid down in **Kolavan** (supra) **and Pazhaniammal** (supra), I am of the considered opinion that the finding of the Tribunal with regard to contributory negligence on the part of the owner of the autorickshaw is erroneous and is liable to be set aside. Hence, I set aside the said finding of contributory negligence. 15. The other principal area of dispute is with regard to the notional income of the appellant fixed by the Tribunal. 16. The appellant had claimed that he was a _MACA No. 1920 of 2008_ _8_ Salesman by profession and earning a monthly income of Rs.6,000/-. However, the Tribunal disbelieved the assertion and fixed the appellant's notional income at Rs.2,000/- per month. 17. The Hon'ble Supreme Court in _**Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited**_ [ _(2011) 13 SCC 236_ ] has fixed the notional income of a Coolie worker in the year 2004, at Rs.4,500/- per month. ## **Notional income** 18. Following the parameters laid down by the Hon'ble Supreme Court in the afore-cited decision and considering that the appellant was only aged 48 years as on 08.12.2002, I am of the considered opinion that the appellant's notional income can safely be fixed at Rs.3,500/- per month. Hence, I refix the appellant's notional income at Rs.3,500/- per month. _MACA No. 1920 of 2008_ _9_ ## **Loss of earnings** 19. The Tribunal had found that the appellant was indisposed for a period of six months due to the injuries that he sustained in the accident, as evidenced from Exts.A8 to A12 discharge summaries. The appellant was treated as an in-patient in the hospital for a period of 103 days. In view of the refixation of the notional income of the appellant at Rs.3,500/- and considering the fact that he was incapacitated for a period of six months, I re-fix the compensation under the head 'loss of earnings' at Rs.21,000/- instead of Rs.12,000/- fixed by the Tribunal. ## **- Bye stander expenses** 20. It is proved by Exts.A8 to A12 series discharge summaries that the appellant was treated as an in-patient for a period of 103 days in four spells from 08.12.2002 to 14.06.2003. The Tribunal has only _MACA No. 1920 of 2008_ _10_ awarded a meagre amount of Rs.5,000/- Eventhough the accident was in the year 2002, I hold that at least Rs.200/- per day had to be fixed towards bye-stander I re-fix the expenses. Accordingly, bye-stander expenses at Rs.20,600/- ## **Pain and sufferings** 21. As per the materials already relied on i.e., Exts.A8 to A12 discharge summaries, it is seen that the appellant had suffered serious injuries including a compound fracture on the shaft of the left femur, fracture on his right ankle, fracture on the left hand and fracture on the 3[rd] and 4[th] metacarpal and the phalanges of the thumb. He was treated for 103 days from 08.12.2002 to 14.06.2003. Eventhough he had claimed an amount of Rs.50,000/- towards pain and sufferings, the Tribunal only awarded an amount of Rs.20,000/-, which according to me is on the lower side. Hence, I enhance the compensation under the _MACA No. 1920 of 2008_ _11_ head 'pain and sufferings' to Rs.35,000/- ## **Loss due to disability** 22. The appellant had produced Exts.A14 disability certificate, which was proved through PW1 who testified that the appellant has a permanent disability at 16%. 23. The Honourable Supreme Court in **Rajkumar v. Ajayakumar** [2011(1) KLT 620(SC)] has categorically held that a disability certificate can be proved if the Doctor who authored the certificate is examined. 24. In view of the examination of PW1 who has proved Ext.A14, I fix the disability of the appellant at 16%. 25. Hence, considering the age of the appellant was 40, the relevant multiplier being '15' the disability being 16% and the notional income fixed at Rs.3,500/- per month, I re-fix the compensation under _MACA No. 1920 of 2008_ _12_ the 'head loss due to disability' at Rs.1,00,800/instead of Rs.36,000/- fixed by the Tribunal. ## **Other heads of claim** 26. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. 27. On an overall re-appreciation of the pleadings, materials on record and the law laid down in the afore-cited decisions, I am of the definite opinion that the appellant/petitioner is entitled for enhancement of compensation as modified and recalculated above and given in the table below for easy reference. |Sl.<br>No|Heads of claim|Amount awarded by<br>the Tribunal (in<br>rupees)|Amounts<br>modified and<br>recalculated<br>by this Court| |---|---|---|---| |1|Loss of earning|12,000/-|21,000/-| |2|Transport|2,000/-|2,000/-| |3|Bye-stander expenses|5,000/-|20,600/-| |5|Expenses for extra nourishment|2,000/-|2,000/-| |6|Medical expenses|1,91,460/-|1,91,460/-| |7|Compensation for pain and<br>sufferings|25,000/-|35,000/-| _MACA No. 1920 of 2008_ _13_ |8|Compensation for loss of<br>amenities|20,000/-|20,000/-| |---|---|---|---| |9|Loss due to disability|36,000/-|1,00,800/-| |||2,93,710/-|3,92,860/-| In the result, the appeal is allowed, in part, by enhancing the compensation by a further amount of Rs.99,150 (Rupees ninety nine thousand one hundred fifty only) with interest at the rate of 7.5% per annum on the enhanced compensation, from the date of petition till the date of deposit, after excluding the period of 66 days i.e., the delay in preferring the appeal as directed by this Court on 19.03.2021 in C.M.Appl.No.1940 of 2008, and proportionate costs. The 3[rd] respondent shall deposit the enhanced compensation awarded in the appeal before the Tribunal with interest and proportionate costs within a period of two months from the date of receipt of a certified copy of the judgment. The Tribunal shall release the enhanced compensation to the appellant, _MACA No. 1920 of 2008_ **==> picture [14 x 9] intentionally omitted <==** **----- Start of picture text -----**<br> 14<br>**----- End of picture text -----**<br> ## in accordance with law. **Sd/- C.S.DIAS,JUDGE** **dlk 30.06.2021**